R v Labuschagne

JurisdictionSouth Africa
JudgeSchreiner JA, De Beer JA and Malan JA
Judgment Date10 December 1959
Citation1960 (1) SA 632 (A)
Hearing Date07 December 1959
CourtAppellate Division

Schreiner, J.A.:

The appellant, a twenty-three year old constable in the South African Police, was convicted of culpable homicide by a Court consisting of JENNETT, J., and assessors, sitting in the East London G Circuit Local Division. He was fined £25 with the alternative of one month's imprisonment. JENNETT, J., granted leave to appeal to this Court.

The deceased, a young coloured man nineteen years of age, had on the morning of the 7th October, 1958, been sentenced in the magistrate's H court, East London, to a fine of £5, with the alternative of 20 days' imprisonment, for being in possession of dagga. The fine not having been paid, he, with other prisoners, was in process of being removed from the court cells to a police van in order to be transported to gaol, when he slipped through the police cordon at the exit from the cells and ran along the pavement. The exit from the cells opens into Caxton Street which lies along the south side of the court block. On the north side of the block lies Terminus Street. These two streets at their eastern ends meet Station Street which runs north and south between

Schreiner JA

the court block on the west and the railway station on the east. The distance between the exit from the cells to the corner of Caxton and Station Streets is about forty yards and the deceased ran to this corner along the northern pavement of Caxton Street. A native constable, Jameson Jevu, ran after him but was soon passed by the appellant who was A the only armed guard in charge of the prisoners. Both Jevu and the appellant called upon the deceased to stop and the appellant fired a warning shot from him revolver over the deceased's head. The deceased did not stop but turned round the corner into Station Street which he crossed diagonally towards the railway station. The appellant followed him and fired two shots, with an interval of several seconds. Both B struck the deceased and, according to the medical evidence, either could by itself have caused his death. He expired almost immediately after receiving the second wound.

The appellant's defence rested, as it had to rest, on sec. 37 (1) of Act 56 of 1955, which reads:

'Whenever any person authorised under this Act to arrest or assist in C arresting any person who has committed or is on reasonable grounds suspected of having committed any offence mentioned in the First Schedule, attempts to arrest any such person and such person flees or resists and cannot be arrested and prevented from escaping by other means than by killing the person so fleeing or resisting, such killing shall be deemed in law justifiable homicide.'

The appellant was authorised by sec. 38 of Act 56 of 1955 to arrest the D deceased and the deceased certainly fled. By attempting to escape he contravened sec. 27 of Act 13 of 1911 (the Prisons and Reformatories Act) the maximum penalty for which was two years' imprisonment and strokes, so that his offence fell within the First Schedule, which includes offences having a maximum penalty exceeding six months', without option. And the appellant attempted to arrest the deceased. All E the other conditions for protection under sec. 37 (1) were thus present and the killing would be justifiable homicide provided that the deceased 'could not be arrested and prevented from escaping by other means than by killing' him. The appellant had to prove by a balance of probabilities that all the conditions of justification were present (Rex F v. Britz, 1949 (3) SA 293 (AD)). It was there said, at p. 303, in relation to sec. 44 (1), the predecessor of sec. 37 (1),

'If the circumstances specified in the section are present the conditions for protection are completely fulfilled and, however unreasonable the arrester may have been, the killing is deemed to be justifiable.'

It should be observed, however, that although, if the conditions required by sec. 37 (1) are present, there will be justification despite G unreasonableness, this does not mean that reason is to be disregarded in deciding whether it was possible to arrest the deceased and prevent him from escaping without killing him. What could have been done means what could in reason have been done, having regard to the facts which the killer knew or ought to have known.

H There appear to be three antecedently possible ways in which the appellant might have prevented the deceased from escaping, without killing him. The first way was to catch him himself. The second, if a...

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20 practice notes
  • Ex parte Minister of Safety and Security and Others: In re S v Walters and Another
    • South Africa
    • Invalid date
    ...Hartzer 1933 AD 306: referred to R v Horn 1958 (3) SA 457 (A): referred to R v Koning 1953 (3) SA 220 (T): referred to R v Labuschagne 1960 (1) SA 632 (A): referred to G R v Lines [1993] OJ No 3284: referred R v Metelerkamp 1959 (4) SA 102 (E): referred to Raloso v Wilson and Others 1998 (4......
  • Ex parte Minister of Safety and Security and Others: In re S v Walters
    • South Africa
    • Invalid date
    ...Hartzer 1933 AD 306: referred to R v Horn 1958 (3) SA 457 (A): referred to R v Koning 1953 (3) SA 220 (T): referred to R v Labuschagne 1960 (1) SA 632 (A): referred to C R v Lines [1993] OJ No 3284: referred R v Metelerkamp 1959 (4) SA 102 (E): referred to Raloso v Wilson and Others 1998 (2......
  • S v Martinus
    • South Africa
    • Invalid date
    ...946 (A) at 956A-958C; Mazeka v Minister of Justice 1956 (1) SA 312 (A) at 316; R v Britz 1949 (3) SA 293 (A) at 303-4; R v Labuschagne 1960 (1) SA 632 (A); S v Scholtz 1974 (1) SA 120 (W) at 124-5; S v Swanepoel 1985 (1) SA 576 (A) at 588A-F; Transvaal Canoe Union and Another v Butgereit 19......
  • S v Barnard
    • South Africa
    • Invalid date
    ...na die volgende gesag verwys: S v Ndhlovu 1945 AD 369; R v Britz 1949 (3) SA 293 (A); R v Koning 1953 (3) SA 220 (T); R v Labuschagne 1960 (1) SA 632 (A); R v Van Heerden 1958 (3) SA 150 (T); Sambo v Milns 1973 (4) SA 312 (T); S v Purcell-Gilpin 1971 (3) SA 548 (RA); S v Nell 1967 (4) SA 48......
  • Request a trial to view additional results
19 cases
  • Ex parte Minister of Safety and Security and Others: In re S v Walters and Another
    • South Africa
    • Invalid date
    ...Hartzer 1933 AD 306: referred to R v Horn 1958 (3) SA 457 (A): referred to R v Koning 1953 (3) SA 220 (T): referred to R v Labuschagne 1960 (1) SA 632 (A): referred to G R v Lines [1993] OJ No 3284: referred R v Metelerkamp 1959 (4) SA 102 (E): referred to Raloso v Wilson and Others 1998 (4......
  • Ex parte Minister of Safety and Security and Others: In re S v Walters
    • South Africa
    • Invalid date
    ...Hartzer 1933 AD 306: referred to R v Horn 1958 (3) SA 457 (A): referred to R v Koning 1953 (3) SA 220 (T): referred to R v Labuschagne 1960 (1) SA 632 (A): referred to C R v Lines [1993] OJ No 3284: referred R v Metelerkamp 1959 (4) SA 102 (E): referred to Raloso v Wilson and Others 1998 (2......
  • S v Martinus
    • South Africa
    • Invalid date
    ...946 (A) at 956A-958C; Mazeka v Minister of Justice 1956 (1) SA 312 (A) at 316; R v Britz 1949 (3) SA 293 (A) at 303-4; R v Labuschagne 1960 (1) SA 632 (A); S v Scholtz 1974 (1) SA 120 (W) at 124-5; S v Swanepoel 1985 (1) SA 576 (A) at 588A-F; Transvaal Canoe Union and Another v Butgereit 19......
  • S v Barnard
    • South Africa
    • Invalid date
    ...na die volgende gesag verwys: S v Ndhlovu 1945 AD 369; R v Britz 1949 (3) SA 293 (A); R v Koning 1953 (3) SA 220 (T); R v Labuschagne 1960 (1) SA 632 (A); R v Van Heerden 1958 (3) SA 150 (T); Sambo v Milns 1973 (4) SA 312 (T); S v Purcell-Gilpin 1971 (3) SA 548 (RA); S v Nell 1967 (4) SA 48......
  • Request a trial to view additional results
1 books & journal articles
  • Recent Case: Constitutional application
    • South Africa
    • Juta South African Criminal Law Journal No. , May 2019
    • 24 Mayo 2019
    ...that the terms of s 49(2) were potentially unconstitutional, and quoted with approval the dictum of Schreiner JA in R v Labuschagne 1960 (1) SA 632 (A) that its provisions were 'extremely, even dangerously wide' (at 306j). In the light of this, and the Constitutional Court's observation in ......

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